The task of statutory construction: some relevant general principles
26 The modern approach to statutory construction requires that appropriate attention be given to text, context and legislative purpose. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 (Alcan), Hayne, Heydon, Crennan and Kiefel JJ said at [47] (citations omitted):
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
27 In Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 (Saeed) French CJ, Gummow, Hayne, Crennan and Kiefel JJ stated at [31] (citations omitted):
As Gummow J observed in Wik Peoples v Queensland, it is necessary to keep in mind that when it is said the legislative "intention" is to be ascertained, "what is involved is the 'intention manifested' by the legislation". Statements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.
28 In Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378, French CJ and Hayne J elaborated upon the statements in Alcan at [24]-[26] (citations omitted):
24. The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, "[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute" (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision "by reference to the language of the instrument viewed as a whole", and "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed".
25. Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative "intention" is to use a metaphor. Use of that metaphor must not mislead. "[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have" (emphasis added). And as the plurality went on to say in Project Blue Sky:
"Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning."
To similar effect, the majority in Lacey v Attorney-General (Qld) said:
"Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts."
The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.
26. A second and not unrelated danger that must be avoided in identifying a statute's purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said:
"Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case."
(Emphasis added).
And as the plurality said in Australian Education Union v Department of Education and Children's Services:
"In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose."
29 In the interpretation of a provision of a Commonwealth Act, a construction that would promote the purpose or object underlying the relevant Act is to be preferred to a construction that would not promote that purpose or object (see s 15AA of the Acts Interpretation Act 1901 (Cth) (the AIA)). But, as Gleeson CJ observed in Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 (Carr) at [5]:
… That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose.
30 In Carr, Gleeson CJ gave the example in [6] of the underlying purpose of an amendment to income tax legislation. The underlying purpose of such legislation is plainly to raise revenue for government. But that does not mean that all federal income tax legislation has to be construed so as to advance that purpose. The interpretation of such legislation frequently raises questions as to where the legislature has drawn the line in pursuing the purpose of raising revenue. Gleeson CJ observed that, in some cases, some assistance in answering that question may be found in the text or in relevant extrinsic materials. In other cases, however, "there may be no available indication of a more specific purpose". The Chief Justice concluded in [6] that:
… Ultimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling.
31 These observations are particularly apposite in the circumstances here, where the issue is essentially one of where the Parliament has drawn the line in ameliorating the potential hardship which is inherent in the general residence requirement.
32 It is also relevant to note s 15AB of the AIA. It relevantly provides:
Use of extrinsic material in the interpretation of an Act
(1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b) to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
(2) Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes:
(a)-(d) …;
(e) any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted;
(f)-(h) ….
(3) In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to:
(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and
(b) the need to avoid prolonging legal or other proceedings without compensating advantage.
33 It is appropriate to now say something more regarding text, context and legislative purpose in relation to the construction of s 22(9) of the Act.
34 In his outline of written submissions, the Minister acknowledged that, read literally and in isolation, the expression "that Australian citizen" in s 22(9)(a) may appear to be no more than a reference back to the Australian citizen who is identified in the chapeau to that provision.
35 The Minister then contended that, if that is the intended operation of the paragraph, "it is unclear why the drafter chose to identify the person by reference to a characteristic (Australian citizenship) which he or she might or might not have possessed at the relevant time". This was described as a "confusing feature", which suggested that "that Australian citizen" is not merely a cross-reference, but rather identifies a status which the applicant's spouse needs to possess during the entirety of the period under analysis.
36 We do not accept this submission. The expression "that Australian citizen" plainly refers back to the Australian citizen who is referred to in the chapeau. That is so whether or not s 22(9) is read in isolation from other provisions in the Act. The text, in its context, is clear. There is nothing "confusing" about this aspect of the provision.
37 It is also clear that the various references in paragraphs (a) to (d) of s 22(9) to "during that period" are a reference to the period which is the subject of the Minister's requested intervention, which is referred to in the chapeau as "a period".
38 Putting to one side for the moment the conditions in paragraphs (b) to (d) of s 22(9), the effect of both the chapeau and paragraph (a) of s 22(9) is that a citizenship applicant who relies on the Ministerial discretion under s 22(9) to meet the general residence requirement must (relevantly):
be a spouse of a person who is an Australian citizen at the time the citizenship application was made; and
have been the spouse of the person who is the Australian citizen during the entirety of the period for which the applicant was absent from Australia and in relation to which the Minister's intervention is sought.
39 This construction of s 22(9) is entirely rational and conforms with the text, when viewed in context.
40 The proper construction of the provision needs to look beyond the particular facts of this case. The Minister emphasises that Ms To only became an Australian citizen approximately three months before Mr Han sought citizenship. The evidence does not disclose the basis upon which Ms To became an Australian citizen, but it is plain that it could not have been by birth. As noted above, Australian citizenship can be obtained in various ways, including by birth, descent, adoption or conferral (there are also other ways as set out in the Act). It would be rational for the Parliament to require that the spouse who is an Australian citizen at the time the other spouse applies for Australian citizenship by conferral must also have been an Australian citizen for a particular length of time so as to achieve uniformity and consistency in the length of time the spouse held Australian citizenship. The Parliament could have determined to condition the exercise of the Minister's power of intervention under that provision on a requirement that the spouse of a citizenship applicant have been an Australian citizen for the entirety of the period when the applicant was absent overseas and for which Ministerial intervention is sought under s 22(9). But it did not do that. Rather, the Parliament was content to require that the spouse be an Australian citizen at the time the application is made, as well as to impose the other conditions in paragraphs (a) to (d).
41 The emphasis the Minister gave to the fact that Ms To became an Australian citizen only approximately three months before her husband sought citizenship also invites the following additional responses. First, it is significant that Mr Han had not only to establish that he was the spouse of Ms To who was an Australian citizen at the time of his citizenship application, but that he also had to establish to the Minister's satisfaction that he had "a close and continuing association with Australia" during the periods for which he sought the Minister's intervention (see s 22(9)(d) of the Act). This additional requirement suggests that the Parliament proceeded on the basis that the requirement that a person have a close and continuing association with Australia to become an Australian citizen is not simply established by the fact that the applicant for citizenship is a spouse of an Australian citizen at the time of application.
42 Secondly, and equally importantly, the Minister retains a residual discretion under s 24(2) to refuse to approve a person becoming an Australian citizen notwithstanding that the person has established eligibility under, relevantly, s 21(2). That residual discretion is available to the Minister in an appropriate case if he or she considers that an applicant for citizenship is "gaming" the system by lodging an application for citizenship immediately after their spouse has become an Australian citizen. Of course, each case will necessarily depend upon its own particular facts.
43 Neither the text (when viewed in context) nor the structure of s 22(9) supports the Minister's preferred construction. If the intention had been that the citizenship applicant's spouse had to be an Australian citizen not only at the time the application for citizenship was made, but also throughout the entirety of the period of the applicant's absence from Australia, it would have been a simple matter to add a further condition to those in paragraphs (a) to (d), along the lines of:
(e) that Australian citizen was an Australian citizen during that period.
44 Alternatively, the Minister's construction effectively requires additional words to be read into the chapeau of s 22(9), such that it would read as follows:
(9) If the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application and during the relevant period, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
…
45 The circumstances in which words are to be read into a statute are limited (see, for example, Thompson v Goold & Co [1910] AC 409 at 420 per Lord Mersey and Marshall v Watson [1972] HCA 27; (1972) 124 CLR 640 at 649 per Stephen J). The conditions for that to occur are not present here.
46 We do not accept the Minister's submission that Mr Han's construction of s 22(9) results in the existence of a spousal relationship being treated as the equivalent of residence, subject to the exercise of a discretion, in which case s 22(9)(a) adds nothing of substance or relevance. Under the construction advanced by Mr Han and as adopted by the AAT, s 22(9)(a) requires the citizenship applicant to be the spouse or de facto partner of the person who is an Australian citizen not only at the time of the application, but also to have been the spouse of that person for the relevant period in relation to which the Minister's intervention is sought. This requirement (together with the other requirements set out in paragraphs (b) to (d) of s 22(9)), limits the circumstances in which the Minister can intervene and effectively ameliorate or mitigate the general residence requirement. The condition imposed in (a) does have relevance and substance because it imposes an additional requirement to that which is imposed in the chapeau (i.e. that the citizenship applicant be the spouse of an Australian citizen at the time the application was made), by also requiring that the spousal relationship have existed for the duration of the relevant periods for which Ministerial intervention is sought.
47 As the plurality stated in Alcan at [47], consideration of context includes the general purpose and policy of a provision and the mischief it is seeking to remedy. We accept the Minister's submission that, consistently with CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2; (1997) 187 CLR 384 (CIC Insurance), context must be considered in the first instance, and not merely at a later stage when ambiguity might be thought to arise.
48 We also accept the Minister's submission that the relevant matters of context in the construction of s 22(9) include:
(a) the pre-existing law;
(b) the changes made by s 22(9) of the Act and related provisions; and
(c) relevant extrinsic materials.
49 As to the pre-existing law, the Minister highlighted the fact that, under s 13(9)(c) of the Australian Citizenship Act 1948 (Cth), the Minister had a discretion to grant a certificate of Australian citizenship to a person who made an application in the approved form and "who is a permanent resident and is the spouse, widow or widower of an Australian citizen".
50 This relatively simple and straight-forward basis upon which the Minister could confer citizenship on such an applicant is to be contrasted with the more onerous requirements of the current legislation relating to persons who seek Australian citizenship by conferral relying upon their spousal relationship with an Australian citizen, as is reflected in the terms of the various provisions which are discussed in [16] to [22] above.
51 One of the obvious purposes of the Act, which is manifest in ss 21 and 22(1), is to specify the criteria which have to be met for a person to obtain Australian citizenship by conferral. Another purpose, which is manifest in provisions such as ss 22(1A), (1B) and (9), is to qualify or ameliorate the strictness of the general residence requirement. There is no doubt that the enactment of the Act in 2007 (and s 22(9) in particular) was intended to make it more difficult for the spouse of an Australian citizen to acquire citizenship by conferral in comparison with the previous regime. But that observation does not resolve the issue of statutory construction in this appeal in circumstances where, as noted above, the issue is essentially one of where the Parliament has drawn the line in mitigating the potential hardship created by the need to meet the general residence requirement.
52 The legislative history leading up to the enactment of s 22(9) in the Act provides another element of the relevant context. Somewhat surprisingly, neither of the parties provided adequate assistance to the Court on this matter until the issue was raised by the Court in oral address. The parties then sought and were granted leave to provide brief supplementary submissions on legislative history. That history may relevantly be summarised as follows.
53 Clause 22(9) of the Australian Citizenship Bill 2005, as introduced on 9 November 2005 (the 2005 Bill), was in the same form as s 22(9) as finally enacted in 2007. (It might be noted that in 2008 the terminology of "widow or widower" was replaced by "de facto partner or surviving spouse or de facto partner"). The following extract from pages 28-29 of the Explanatory Memorandum which accompanied the 2005 Bill also contains some statements of policy:
Ministerial discretion - spouse, widow or widower of Australian citizen
Proposed subsection (9) provides for Ministerial discretion in the case of a spouse, widow or widower of an Australian citizen.
If the person is the spouse, widow or widower of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(a) the person was a spouse of that Australian citizen during that period; and
(b) the person was not present in Australia during that period; and
(c) the person was a permanent resident during that period; and
(d) the Minister is satisfied that the person had a close and continuing association with Australia during that period.
Proposed subsection (10) clarifies that for the purposes of new subsection (9), the meaning of 'spouse' of an Australian citizen includes a person granted a permanent visa as a de-facto spouse of that citizen.
This new subsection amends the Act by requiring that spouses of Australian citizens meet the same criteria as other adult applicants for citizenship. This reflects current policy, and the modern expectation that adult applicants should qualify in their own right rather than relying on a spousal relationship with another person.
However, it is recognised that in some circumstances the spouse of an Australian citizen may have difficulty meeting the residence requirements, for example if they are accompanying their Australian citizen spouse overseas (for example, spouses of Australians working overseas for international organisations). As a result this subsection introduces a new discretion to waive part or all of the residence requirements for the spouse of an Australian citizen who can demonstrate a close and continuing association with Australia.
Associated with this new discretion, a new provision (subsection 24(5)) provides for approval of applications where the spouse is outside Australia.
(Emphasis added).
54 The passages emphasised above indicate that it was intended that spouses of Australian citizens should generally meet the same criteria as other adult applicants and not merely rely on a spousal relationship. It is equally evident, however, that it was intended to ameliorate this policy by conferring a discretion upon the Minister to "waive" part or all of the residence requirements for the spouse of an Australian citizen who could demonstrate a close and continuing association with Australia. The Minister submitted, and we accept, that this material indicates that the mischief or purpose which s 22(9) was intended to serve was to provide a mechanism whereby the general residence requirement and the difficulty which some applicants for citizenship could experience in meeting that requirement could be mitigated.
55 Page 2 of that Explanatory Memorandum refers to changes which were announced by the Government on 7 July 2004, which included:
requiring a spouse of an Australian citizen to meet the same requirements for Australian citizenship by conferral as most adult applicants, although allowing wider discretion in relation to residence, where the spouse has a close association with Australia. (Emphasis added).
56 In our view, however, these passages in the Explanatory Memorandum do not support the Minister's construction of s 22(9). They do not state that, for the Minister's discretion under s 22(9) to be enlivened, the applicant's spouse had to be an Australian citizenship not only at the time of application, but throughout the entirety of the relevant period or periods in respect of which amelioration is sought. The reference in the penultimate paragraph of the extract at [53] above to an applicant "accompanying their Australian citizenship spouse overseas" does not establish that it was intended that s 22(9) could only be relied upon where the applicant was overseas in the company of his or her spouse who was an Australian citizen for the entirety of that period. As the Explanatory Memorandum makes clear, this is simply one example of a situation where the spouse of an Australian citizen may have difficulty meeting the residence requirements. It falls far short of indicating that proposed s 22(9) could have no application unless the spouse who was an Australian citizen accompanied the applicant overseas for the entire time and was an Australian citizen for all of that time.
57 In our view, the relevant passages from the Explanatory Memorandum confirm that the meaning of s 22(9) is the ordinary meaning which is conveyed by the text taking also into account relevant context and the purpose or object of the Act (see s 15AB(1)(a) of the AIA). The respondent accepted that it was legitimate to have recourse to the Explanatory Memorandum for this purpose (noting that the AAT below took a different view and concluded that resort to extrinsic materials was "neither necessary nor warranted" (at [32])).
58 During the passage of the 2005 Bill through the House of Representatives, a Supplementary Explanatory Memorandum was circulated which explained various amendments to be moved by the Government. Amendment 44 proposed to insert a sub-clause 22(10), which would provide for a "spouse" in cl 22(9) to include a de facto spouse. The Supplementary Explanatory Memorandum contained the following material in respect of that amendment:
Amendment (44) - Residence requirement
This amendment to clause 22 omits subclause (10), and substitutes new subclauses (10) and (11).
Subclause 22(9) of the Bill allows the Minister to treat periods spent overseas by an applicant as periods during which the person was present as a permanent resident in Australia. The person must have been a permanent resident and the spouse of an Australian citizen during the time overseas and satisfy the Minister that they had a close and continuing relationship with Australia during the time overseas.
Subclause 22(10) of the Bill provides that a 'spouse, of an Australian citizen' includes a person granted a permanent visa as a de facto spouse of that Australian citizen. New subclause 22(10) (as substituted by this amendment) provides that for the purposes of subclause 22(9)'spouse' includes de facto spouse.
The purpose of this amendment is to ensure that the same requirements apply to spouses and de facto spouses before the discretion in subclause 22(9) can be exercised. In particular, it ensures that de facto spouses must continue to be in the de facto spouse relationship with the Australian citizen both during the time spent overseas, and at time of making their citizenship application.
New subclause 22(11) creates a similar discretion in relation to a person in an interdependent relationship with an Australian citizen. Such people may count time spent overseas as time spent in Australia as a permanent resident, provided certain requirements are met. For a person in an interdependent relationship, the requirements are that the person holds a permanent visa granted on the basis of the person's interdependent relationship with an Australian citizen, both at time of application and during the time spent overseas; and that the person was in that interdependent relationship both during the time spent overseas and at the time of application. To exercise this discretion, the Minister must also be satisfied that the person had a close and continuing relationship with Australia during the period spent overseas.
(Emphasis added).
59 After the 2005 Bill passed the House of Representatives on 28 November 2006, it was introduced in the Senate on 30 November 2006. A Revised Explanatory Memorandum was then circulated, which took into account amendments made by the House. That document contained the following material in respect of cl 22(9):
Ministerial discretion - spouse, widow or widower of Australian citizen
Subclause (9) provides for Ministerial discretion in the case of a spouse, widow or widower of an Australian citizen.
If the person is the spouse, widow or widower of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if the person:
(a) the person was a spouse of that Australian citizen during that period; and
(b) the person was not present in Australia during that period; and
(c) the person was a permanent resident during that period; and
(d) the Minister is satisfied that the person had a close and continuing association with Australia during that period.
This provision allows the Minister to treat periods spent overseas by an applicant as periods during which the person was present as a permanent resident in Australia. The person must have been a permanent resident and the spouse of an Australian citizen during the period overseas and satisfy the Minister that they had a close and continuing relationship with Australia during the period spent overseas.
This makes clear that periods spent overseas by a spouse that may be counted towards time spent in Australia for the purposes of the residence requirement, must be as a permanent resident of Australia.
(Emphasis added).
60 The Minister submitted that the relevant passages set out above from both the Supplementary Explanatory Memorandum and the Revised Explanatory Memorandum "squarely" supported his construction of s 22(9)(a). The emphasised words in those extracts are not unambiguous but, on one view of them, they provide some support for the Minister's construction. However, as the Minister correctly acknowledged, to the extent that those statements go beyond identifying the relevant "mischief" (and merely reflect the authors' subjective intentions as to the operation of cl 22(9)), their relevance as aids to construction is confined to s 15AB(1)(a) and (b) of the AIA.
61 For the reasons we have given above, if the subjective intention of the authors of these particular extrinsic materials is that which the Minister suggests, the text of s 22(9) does not give effect to their subjective intention. These materials from the Supplementary Explanatory Memorandum and the Revised Explanatory Memorandum do not confirm that the meaning of s 22(9) is the ordinary meaning conveyed by the text taking into account its context and the purpose or object underlying the Act (see our analysis above). Nor do we consider that the meaning of s 22(9) is ambiguous or obscure so as to attract s 15AB(1)(b)(i) of the AIA. Finally, as the Minister acknowledged, the ordinary meaning of s 22(9) does not lead to a result that is manifestly absurd or is unreasonable. Accordingly, s 15AB(1)(b)(ii) of the AIA is not engaged.
62 For completeness in dealing with the legislative history to s 22(9), it might also be noted that s 22(9) of the Act as originally enacted was in the same terms as cl 22(9) of the 2005 Bill and s 22(10) was enacted in the form of Amendment 44. Subsequently, the chapeau of s 22(9) was amended to its current form and s 22(10) was replaced by the current provision.
63 For these reasons, we consider that the construction of s 22(9) of the Act as adopted and applied by the AAT was the correct construction.